Supreme Court’s first Black female justice expected to weigh in on affirmative action

The Supreme Court is taking pains to make sure its first Black female justice gets to take part in at least some of the looming arguments over schools’ affirmative action policies.

The justices announced recently that two major cases, one involving Harvard University’s admissions policy and another centered on the University of North Carolina, will now be heard separately.

The cases originally were scheduled to be heard together. They involve the same core issue and even have the same plaintiff, Students for Fair Admissions.

That was before Justice Ketanji Brown Jackson joined the court this summer.

The judge, who sat on Harvard’s board of overseers, promised during her confirmation hearing to recuse herself from taking part in the case involving the school.

By splitting the cases, the court ensures she can play a role in the UNC case.

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In theory, that could produce results in which one school’s policy is struck down and the other’s is upheld, but legal experts doubt that will happen. They expect the six-justice Republican-appointed majority to control the decisions.

“Here, it won’t make a difference. The most likely scenario is Harvard will lose 6-2 and UNC will lose 6-3,” said Ilya Shapiro, senior fellow at the Manhattan Institute.

The two cases came to the high court 19 years after the last major affirmative action ruling, when the justices upheld the limited use of race in school admissions but warned about a time limit on the policy.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” Justice Sandra Day O’Connor wrote in the prevailing opinion.

Students for Fair Admissions is back six years before that deadline to say the time has come to end race-focused preferences. The group says schools such as Harvard are using preferences to benefit some racial or ethnic minorities at the expense of others — namely Asians.

In both cases, lower courts have sided with the schools.

The cases are set to be argued on Oct. 31.

Justice Jackson, under questioning by Sen. Ted Cruz, Texas Republican, said during her confirmation hearing that she planned to recuse herself from the Harvard case.

“That is my plan, senator,” she told Mr. Cruz, a fellow Harvard Law School graduate.

The high court does not have binding rules on recusals. Justices decide whether they have connections to parties that compel them to step aside for cases.

Maurice Cayer, a professor at the University of New Haven in Connecticut, said it is not surprising that the high court separated the arguments because the Harvard case deals with the Civil Rights Act of 1964 and the UNC case centers on the Constitution’s 14th Amendment.

“Two different filings, and then you layer on Justice Jackson recusing herself because when she was affiliated with Harvard, she was on a board that helped to set policy … so that makes perfect sense,” he said.

Josh Blackman, a professor at South Texas College of Law, said it’s uncommon for the court to separate the arguments after consolidating them.

“This move is fairly rare, but I think it was needed to ensure that Jackson could at least participate in the UNC case,” he said. “The court will probably hear the UNC case first, and after that argument concludes, Jackson will leave the bench and the Harvard case will begin.”

The cases are Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions. v. University of North Carolina.